Kelly v Lazio Formwork Pty Ltd
[2022] NSWPIC 506
•13 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Kelly v Lazio Formwork Pty Ltd [2022] NSWPIC 506 |
| APPLICANT: | John Kelly |
| RESPONDENT: | Lazio Formwork Pty Limited |
| Member: | Philip Young |
| DATE OF DECISION: | 13 September 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Applicant alleges injuries to lumbar spine, cervical spine and right lower extremity (knee); issues concern Anshun estoppel; liability concerning lumbar spine and cervical spine and section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Held – regarding lumbar spine and cervical spine Anshun estoppel not established; applicant’s claim of cervical spine injury not established; applicant’s claim of lumbar spine injury established on the evidence; applicant not confined by section 322A of the 1998 Act because of no prior history of permanent impairment claim for the lumbar spine and no assessment of injury for the lumbar spine. |
| determinations made: | 1. The appropriate Directions are as follows: (a) award in favour of the respondent in respect of allegation of cervical spine injury; (b) award in favour of the applicant in respect of lumbar spine and right lower limb injuries; (c) the matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s lumbar spine deemed to have occurred on (d) the President’s delegate is requested to place before the Medical Assessor a copy of the Application and attachments lodged on 16 June 2022 and a copy of the Reply and attachments lodged on 8 July 2022. |
STATEMENT OF REASONS
BACKGROUND
John Kelly (the applicant) is a 55-year-old-man who was employed by Lazio Formwork Pty Limited (the respondent) as a form worker. He alleges that during his employment with the respondent he performed heavy and arduous duties which placed stress and strain upon his neck causing cervical spine injury with radiculopathy. He also mentions “lumbar spine injury and knee injury”[1] and says that from 1984 to 9 April 2010 the nature and conditions of his work have caused, aggravated, exacerbated or accelerated (aggravated etc) a degenerative condition in his lumbar spine.
[1] Application at page 7.
The claim for weekly payments is brought because the applicant seeks weekly payments after five years pursuant to section 39 of the Workers compensation Act 1987 (1987 Act). The respondent does not accept any aggravation (etc) of the applicant’s cervical spine as required by section 4 (b) of the 1987 Act and does not accept that the applicant has more than 20% whole person impairment resulting from injury as required by section 39 of the 1987 Act. Additionally, the respondent says that the applicant has exhausted his permissible one claim for permanent impairment compensation required by section 66 (1A) of the 1987 Act[2].
[2] Reply at page 10.
Ultimately the applicant came to anterior intervertebral fusion at C5/6/7 in November 2013.
The applicant claims weekly benefits compensation from 7 October 2017 on an ongoing basis and suggests that the relevant pre-injury average weekly earnings are $828.72 per week. During this same period the applicant has alleged that he has not worked at all. During submissions there was nothing said about the relevant weekly payments rate.
It would seem that the applicant was only employed by the respondent for a period of two to four months prior to ceasing work on 10 April 2010. For that reason and also because the applicant engaged in prior proceedings in the Workers Compensation Commission for which he received a section 66 payment, some interesting issues arise in this matter.
ISSUES
There are broadly three issues to be considered. The first concerns Anshun estoppel.[3] Second, liability is in dispute in relation to certain “body parts” in particular the applicant’s lumbar spine and cervical spine. Third, there is an issue which arises from section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) because the respondent asserts that the applicant has already received his assessment in respect of degree of permanent impairment.
[3] Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
This matter came for conciliation and arbitration hearing on 16 August 2022 by audiovisual link. On that occasion Mr McManamey of counsel appeared for the applicant, instructed by Ms Moloney. Mr Andrew Parker of counsel appeared for the respondent, instructed by
Ms Nguyen, solicitor. Ms Bozinoski was also present.The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute and attachments lodged on 16 June 2022 (Application), and
(b) Reply and attachments lodged under cover of Application to Admit Late Documents on 11 July 2022 (Reply).
ORAL EVIDENCE
No oral evidence was given.
DISCUSSION AND REASONS
Anshun
Relying on Anshun, the respondent asserts that it was unreasonable for the applicant not to have claimed injuries to his lumbar spine and cervical spine in earlier proceedings. The first of those proceedings against the same respondent appears to have occurred in 2014 bearing proceedings numbered 00161/14 and 006091/14.[4] In those 2014 proceedings the applicant proceeded against a number of respondents with whom he had been employed over many years. The current respondent was described as the fourth respondent and by Schedule D to that Application[5] the applicant does a number of things as follows:
(a) he seeks medical expenses, lump sum compensation and compensation for pain and suffering;
(b) he pleads date of injury 9 April 2010 with injury description “back, neck, right hip, right knee” due to his employment as a form work carpenter, and
(c) he points to L3/4 spinal fusion having occurred on 7 May 2013 and cervical fusion of C5/6 and C6/7 on 20 November 2013.
[4] See Reply at page 54.
[5] Commencing at Reply at page 106.
The applicant’s statements[6] quite clearly illustrate the applicant’s understanding of injury to his back, neck, hip and right knee. A Certificate of Determination – Consent Orders[7] was issued in respect of the 2014 proceedings on 24 July 2014 by which the applicant withdrew and discontinued his claim in its entirety against the fourth respondent (the current respondent).
[6] See Reply at page 207 and Reply at page 88.
[7] Reply at page 266.
In Geary[8] his Honour President Judge Philips had before him an issue as to whether a claim would be estopped in failure to plead a disease injury pursuant to section 4 (b) (ii) of the 1987 Act. Reference was made by his Honour to not only the principle in Anshun but also the decision of her Honour McColl JA in Habib[9]. In Habib McColl JA (Giles and Campbell JJA concurring) said:
“The principle commonly referred to as Anshun estoppel… involves an extended doctrine of res judicata. It operates ‘not only [in respect of] points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, at which the parties exercising reasonable diligence, might have brought forward at the time’: Anshun (at 598) per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears ‘that the matter relied upon…in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it: Anshun (at 602)’. The test is one of reasonableness.”
[8] Geary v UPS Pty Limited [2021] NSWPICPD 47.
[9] Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231.
Her Honour McColl JA in Habib identified (at [84]) the necessity to adopt a strict approach in looking to see whether an identity between the proceedings existed, that it was insufficient that the proceedings were closely related and because the doctrine is concerned with substance rather than form, a technical approach is unhelpful. A “scrupulous examination of all of the circumstances” is required.[10]
[10] Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 at [85].
His Honour President Judge Philips added a few specific considerations in Geary to matters as they arise in this Commission. First, because of section 354 (1) and section 354 (3) of the 1998 Act the emphasis is on as little formality and technicality as a proper consideration of the matter permits. Second, the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. Third, there exists the reconsideration power in section 350 (3) of the 1998 Act. Fourth, the Commission’s decision is final and binding on the parties.[11]
[11] Geary v UPS Pty Limited [2021] NSWPICPD 47 at [88].
Deputy President Snell had occasion to consider Anshun in Woolstar.[12] That case originally before Arbitrator Homan involved an award for the respondent employer essentially based upon untruths by the applicant affecting the applicant’s credibility regarding past psychological treatment, an unsuccessful appeal and thereafter a further claim on the applicant’s behalf for the same condition but for whole person impairment. Ultimately, that second set of proceedings came before Member Peacock who had before her an allegation by the respondent that the applicant was estopped from bringing any further claim for psychological injury.
[12] Woolstar Pty Limited v Wood [2022] NSWPICPD 25.
Member Peacock decided that the Anshun principles did not apply because at the time of the original proceedings the applicant had no medical evidence to support an aggravation (etc) of disease case and this evidence subsequently emerged. The applicant had not in the original proceedings pleaded nor run a case based on section 4 (b) (ii) of the 1987 Act.
Snell DP after referring to Anshun and Habib as well as Miller No. 5[13] and Booth[14] said in Woolstar as follows:
“86. It follows from the above that, in presenting his case in the initial proceedings as one within the meaning of s 4 (b) (i), the worker was running the only available medical case on causation for which he had specialist medical support. The evidence overall supports the Member’s conclusion that the worker did ‘not run the section 4 (b) (ii) because he did not have expert evidence that supported that case’. The passage from Manojlovski quoted at [80] above describes the focus of the Anshun test as being based ‘on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings’ and said ‘its point is the test of unreasonableness’. The passage of Habib quoted at [78] above refers to ‘an evaluative element based on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings’. It was not unreasonable that the worker pursued his claim in the initial proceedings on the only basis reasonably open to him on the medical opinion then available.”
[13] Secretary, Department of Communities and Justice v Miller [2020] NSWWCCPD 38.
[14] Fourmeninapub Pty Limited v Booth [2019] NSWWCCPD 25 (President Judge Philips).
Ultimately in Woolstar Snell DP did not anticipate that the applicant’s failure to pursue the claim in accordance with section 4 (b) (ii) would result in any conflicting judgment in the earlier proceedings before Arbitrator Homan where the claim pursuant to section 4 (b) (i) was not established.
The respondent points to an added argument that further proceedings by the applicant in 2021 included injury description claims for all relevant periods and that these proceedings were discontinued. True it is that the claims across the years are almost identical and that the election not to pursue the earlier claims does not appear to be explained. The injury description is virtually identical, and the claim is expressed as a nature and conditions type claim. The applicant identifies his injury in his claim form lodged in 2010 as follows:
“Lower back, right hip fracture, right knee and right middle finger…nature and conditions of employment.[15]”
[15] Application at page 16.
The above claim form would appear to have been completed with the assistance of Shanahan Tudhope Lawyers.[16] The applicant was therefore aware as early as 2010 that he had sustained the above injuries. The exception to this is that the work related injury to the applicant’s cervical spine was not evident in 2010.
[16] Application at page 16.
This is confirmed by a section 74 notice issued by GIO General Limited on
6 December 2010.[17] The next section 74 notice is dated 23 December 2013 and by this time identifies a claim for “lower back, neck, right arm and loss of sexual function injuries” due to the nature and conditions of the applicant’s employment.[18] The applicant was complaining of neck and lower back pain in 2011[19] and in fact had undergone MRI scans of both his lumbar spine and cervical spine.[17] Reply at page 32.
[18] Reply at page 30.
[19] See report of Dr Hsu dated 22 November 2011 at Reply at page 164.
The inevitable conclusion in my view is that the applicant was aware of his back and neck disability from a time not long after his cessation of employment with the respondent. It is in this context that what must be considered is the question of whether it was unreasonable for him not to have included those allegations of injury in his prior claims of 2014 and/or the Certificate of Determination of 3 March 2015[20] or the Determination of the Application in 2021.
[20] Reply at page 264.
The applicant has been involved in a number of proceedings in the Workers Compensation Commission. Proceedings numbered 470/02 were against three respondents, none of which was the present respondent. Those proceedings were concluded by Terms of Settlement dated 20 November 2002 which resulted in awards pursuant to section 66 and section 67 of the 1987 Act. The section 66 awards[21] were in respect of loss of use of the applicant’s right hand, permanent impairment of the applicant’s back and loss of use of the applicant’s sexual organs. That set of proceedings is otherwise irrelevant to the Anshun issue.
[21] Reply at page 259.
Proceedings were then commenced in the Commission the subject of matter number 010125 of 2010. This time the current respondent was joined as a fourth respondent.[22] Those proceedings were settled on 16 June 2011. The Certificate of Determination – Consent Orders[23] provides for a closed period award for the applicant in respect of weekly payments up to 2 June 2011 together with ongoing weekly payments on a voluntary basis.
[22] See Reply at page 263.
[23] Reply at page 256.
The next set of proceedings were in matter 000161/14, earlier mentioned. The current respondent was again listed as fourth respondent. On that occasion the applicant withdrew and discontinued the claim against the fourth respondent and the applicant’s back injury and consequential condition affecting sexual organs were remitted to the Registrar for referral to an Approved Medical Specialist (AMS) in respect of dates of injury 1 July 1988,
19 August 1992 and 16 March 1994. There is no judgment against the present respondent.Proceedings 000161/14 were the subject of Consent Orders dated 26 November 2014[24] which did not involve the present respondent. The applicant then commenced proceedings only against the present respondent numbered 006091/14 which were determined on
3 March 2015. That Certificate of Determination made an award against the respondent pursuant to section 66 of the 1987 Act in respect of 13% permanent impairment resulting from injury on 9 April 2010 (right lower extremity).[24] Reply at page 268.
The award for 13% permanent impairment includes a Statement of Reasons as follows:
“2. This Certificate of Determination is issued in accordance with the medical assessment certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.”[25]
[25] Reply at page 272.
The particular Medical Assessment Certificate was by Dr Burns and is dated
24 February 2015. The body parts/ system referred for assessment were right lower extremity (knee) and scarring. That being the case, although Dr Burns noted a history of spinal injury[26] the assessment related only to whole person impairment in respect of the applicant’s right lower extremity.[26] Reply at page 284.
The next proceedings were numbered W5253/21 and were determined by consent on
28 January 2022 with the matter being discontinued.[27][27] Reply at page 273.
Section 65 (3) of the 1987 Act was in a different form prior to 1 January 2019. As pointed out by Senior Member Capel in Dang[28] the Workers Compensation Amendment Act 2018 repealed the former section 65 (3) of the 1987 Act. Senior Member Capel said:
[28] Dang v Onesteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing [2021] NSWPIC 476.
“119. Prior to 1 January 2019, s 65(3) of the 1987 Act provided:
‘Determination of degree of permanent impairment
(3) If there is a dispute about the degree of permanent impairment of an injured
worker, the Commission may not award permanent impairment compensation
unless the degree of permanent impairment has been assessed by an approved
medical specialist.’120. The section was repealed by cl 2 of Sch 2 of the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act). This schedule commenced on the date of proclamation of 1 January 2019.
121. Savings and transitional provisions were added by the 2018 amending Act at cl 2(1) of Pt 19L of Sch 6, which provides:
‘2 Application of amendments generally
(1) Except as provided by this Part or the regulations, an amendment made by the 2018 amending Act extends to—
(a) an injury received before the commencement of the amendment, and
(b) a claim for compensation made before the commencement of the
amendment, and(c) proceedings pending in the Commission or a court immediately before
the commencement of the amendment.’122. Therefore, the applicant’s claim is governed by s 65 of the current version of the 1987 Act.”
In this matter we are not dealing with an issue as to which version of section 65 applies to the applicant’s claim. But what is necessary to consider in the context of things done or not done by the applicant prior to 1 January 2019 is the reasonableness of the claims he pursued. There is no evidence that the applicant held any Medical Assessment Certificates in respect of his neck or back during any of the proceedings prior to 1 January 2019. In those circumstances the applicant can be forgiven for not pursuing a claim because the section required him prior to 1 January 2019 to first seek a Medical Assessment Certificate. That, to my mind, is a reasonable explanation for not having pursued those claims prior to
1 January 2019.In Thompson v George Weston Food P/L McGrath CJ said as follows:
“I do not consider that there is a rule which would prevent a worker bringing an action claiming one type of benefit and leaving another type of benefit for later, or other, adjudication... At the time of hearing a claim on original liability a claim under the Table of Maims may not have crystallised into one of the scheduled losses. The fact that it had not been claimed in the original proceedings could not prevent it being claimed subsequently, if the applicant succeeded on the issue of basic liability. Even if it were crystallised, and not included, there would be no bar to its subsequent determination by the Court, or a medical panel. although its non-inclusion in the original claim might be relevant to the question of costs."
In Bruce[29] his Honour Neilson J pointed to and approved of comments of King CJ in Jorgensen[30] in the Supreme Court of South Australia. The excerpt adopted by his Honour is as follows:
[29] Bruce v Grocon Limited [1995] NSWCC 10
[30] Salmon Street Limited (in Liq) v Jorgenson [1991] SASC 2963
"The Workers Compensation Act does not create a single cause of action for compensation for injury sustained in a particular accident. A worker may under this Act, as was the case under the Commonwealth Employees Compensation Act 1930 (Cth) which was considered in Commonwealth v. Matheson [1955] HCA 24; (1955) 93 CLR 403, be compensable separately in respect of disparate injuries sustained in the same accident and may pursue separate claims in respect of such injuries. Thus, where a worker sustained a leg injury and a back injury in the same accident, it was held that the receipt of a lump sum for the leg injury did not disentitle the worker to subsequent weekly payments in respect of the back injury: see Lee v. Commonwealth (1971) 18 FLR 400.’
His Honour went on to point out that the remedy conferred by the Workers Compensation Act is not an action to recover compensation analogous to the remedy available at common law. His Honour went on to consider the scheme provided by the South Australian Act for the giving of notice and the making of claims and for the disposal of disputed claims by the Industrial Court. The mechanisms referred to by his Honour are analogous to the mechanisms under the New South Wales Statute. His Honour then continued at 162:
‘In my opinion a worker who seeks to have a disputed right to compensation in respect of a particular injury determined by the Industrial Court is not required to raise in the proceedings all injuries or impairments which he has sustained in the accident or even all injuries or impairments of which he is then aware. He may obtain an award in respect of one or more injuries or impairments, and subsequently pursue his claim in respect of other injuries or impairments suffered in the same accident. If, however, a claim in respect of a particular injury or impairment is pleaded in the proceedings and is the subject of a determination either granting compensation or dismissing the claim, the claim in respect of that injury or impairment merges in the determination and subsequent proceedings for the determination of a disputed claim in respect of the same injury or impairment would be barred as res judicata. It is therefore necessary to examine the pleadings in the prior proceedings and the terms of the award in order to determine whether the subsequent claim is barred.’
His Honour went on to consider the pleadings in the earlier proceedings and held that no estoppel arose. Dealing with the initial decision, his Honour said at 163:
‘The learned primary judge had held that the application was an abuse of process on the authority of Port of Melbourne Authority v. Anshun Pty Ltd and the Full Industrial Court disagreed. The application could only be an abuse of process if the respondent ought to have included the claim for vertigo in the 1984 application.’
Cox and Bollen JJ agreed. A striking aspect about this case which does not appear to have been considered by the Full Court is that it would have been impossible in proceedings commenced on 27 January 1984 and determined on 4 June 1984 to have agitated a claim for weekly payments commencing on 5 February 1989. However, the observations of King CJ are in my view of great assistance, being in a similar vein to the observations made by McGrath CJ in Thompson v. George Western Foods Ltd.
6. Jorgensen's case was followed by Moroney J in Kerr v. Hunter District Water Board (1991) 7 NSWCCR 289. In that case a worker had obtained lump sum compensation under section 66 sufficient to entitle him to an award under section 67. He only made his claim for lump sum compensation under section 67 in subsequent proceedings. His Honour held that no estoppel arose in that regard, relying largely on the reasons advanced by King CJ. In Petralito v. Awa Ltd [1992] NSWCC 2; (1992) 8 NSWCCR 21, Moroney J followed his earlier decision in Kerr's case. There are numerous other unreported decisions of judges of this Court in which workers have been permitted to bring claims for lump sum compensation pursuant to section 67 after having earlier proceedings under section 66.
7. From these cases I distil the following principles:
(a) There is no ‘cause of action’ for workers compensation. The Act creates a number of rights which a worker is entitled to pursue independently of other rights: Jorgensen's case, Thompson's case.
(b) Estoppel will arise if the relief claimed in second or subsequent proceedings was claimed in original proceedings: Jorgensen's case.
(c) Estoppel of the type referred to in the Port of Melbourne Authority v. Anshun Pty Ltd will apply if there were alternative bases to ground the relief claimed but one of those bases was not pursued: Ada's case. An analogous situation to Ada's case is one where a person claimed to be a "worker" and failed in that allegation. Subsequently he brought second proceedings seeking to allege that he was a ‘deemed worker’ for the purposes of the Act. In such cases the claimant's remedy is pursuant to section 17(4) of the Compensation Court Act 1984.
(d) Where a claim could have been litigated in earlier proceedings but was not, there may be a cost penalty: Thompson's case, Jorgensen's case per Cox J at 164, Kerr's case at 295.”
That deals with the various proceedings up until 2021 because the applicant could not succeed in respect of any section 66 claim before 1 January 2019 unless the applicant had possession of a Medical Assessment Certificate. As acknowledged by McGrath CJ in Thompson[31] there are some instances in which claims for lump sum compensation may not always be made at the same time. The requirement to combine all permanent impairment compensation claims imposed by section 263 is subject to “as far as practicable” within the section itself. That issue i.e., as to whether the applicant’s claims for back and neck should have been brought at the same time as the right knee is resolved in my view as follows:
(a) the absence of any Medical Assessment Certificates concerning the applicant’s back and neck before 1 January 2019;
(b) the entitlement of the applicant to pursue separate claims in respect of several injuries sustained by reason of the nature and conditions of his employment, and
(c) the fact that the 2021 proceedings were discontinued so that it is not possible for determination of the current Application to present any conflicting judgment.
[31] Thompson v George Weston Foods Limited (1990) 6 NSWCCR 370.
In my view the respondent’s claim in respect of Anshun estoppel fails.
Liability and causation
The applicant completed a claim form on 24 June 2010 which was delivered to the employer on 8 October 2010. The incident/injury is described as follows:
“Lower back, right hip fracture, right knee and right middle finger.”[32]
[32] Application at page 16.
The applicant makes reference[33] to having consulted Leichhardt Medical Centre and Dr Peter Walker (orthopaedic surgeon). There is no mention of any injury to the applicant’s neck.
[33] Application at page 17.
In the 2014 proceedings the applicant relied upon a statement which he gave to the respondent’s investigator on 29 October 2010. That statement references the applicant up until that time suffering pain in his back, right leg and groin[34] but again there is no mention of any pain or disability concerning his neck.
[34] Reply at page 210 at [35]–[38].
The applicant provided a subsequent statement on 29 October 2010. That statement also does not appear to mention the applicant’s neck.
The report of Dr Walker of 3 May 2010[35] relates a history of the applicant struggling at work since 1989 having injured his right little finger, his hip region, right leg, groin, lower back and knee. There is no mention of any neck problems.
[35] Application at page 231.
Dr Walker reported again on 20 January 2011[36] with again no mention of any neck problems.
[36] Reply at page 233.
The applicant was referred for assessment of permanent impairment by Dr Burns on
16 October 2014 and in respect of his back and sexual organs.[37] The applicant gave
Dr Burns a history of a fall on 1 July 1988 when he dislocated his right middle finger and experienced low back pain which on his return to work gradually deteriorated.[38] There is then injury to the lower back and subsequent physiotherapy following an incident on19 August 1992[39] and a third accident on 16 March 1994 involving his lower back and a prolonged period of absence from work.[40][37] Reply at page 248.
[38] Reply at page 249.
[39] Reply at page 249.
[40] Reply at page 249.
After about 18 months off work following the third accident the applicant worked as a form worker from 1996 until 2010, suffering “ongoing flare ups in his low back pain going down towards his right buttock and right leg”.[41] He had further problems with his right knee and lower back in 2020 and told Dr Burns that he had asked Dr Walker about his low back and neck symptoms and was referred to Dr Steel, a neurosurgeon, who ultimately recommended a fusion at L3/4 which was performed on 7 May 2012. The applicant told Dr Burns that he was on a waiting list to have a further laminectomy in respect of his cervical spine.[42]
[41] Reply at page 250.
[42] Reply at page 250.
The applicant was examined by Professor Ehrlich on 31 July 2013.[43] Evidently the applicant did not mention any problems with his neck “other than to complain that his request to have payment for an operation on his neck was refused”. The applicant told Professor Ehrlich that his neck became painful in about 1989 or 1990 “and it is still troubling him”. That comment to my mind does not implicate any work for the respondent up to 10 April 2010.
[43] Reply at page 341.
The applicant saw Dr Jones, rehabilitation consultant, at the request of his solicitors on
12 June 2013. Dr Jones took a history of neck and lower back pain evident according to the applicant from the incident in 1988.[44] Dr Jones does not, however, turn her mind to the nature and conditions of the applicant’s employment up until 9 April 2010. She does assess the neck, sexual organs, the right upper limb and the back.[44] Reply at page 115.
Some records of Dr Steel are attached to the Application.[45] Dr Steel’s report of 30 April 2012 mentions the applicant’s lower back but not his neck.[46] By 21 August 2012, however,
Dr Steel was commenting on the applicant’s need for surgery at C5/6 and C6/7.[47][45] Application from 180.
[46] Application at page 902.
[47] Application at page 908.
It is significant to my mind that on 10 May 2007 the applicant was referred by Dr Singh to
X-ray and CT scan of the cervical spine. Amongst other things, posterior protrusions were demonstrated at C5/6 and C6/7[48]. Then in October 2020 when the applicant was examined by Dr Fearnside the history includes injuries to the cervical spine, right middle finger and lumbar spine dating back to 1 July 1988. The applicant told Dr Fearnside that when he ceased work in 2010 he did so because of back pain, weakness in his right leg together with knee pain and pain from his neck to the lower back.[49] The history given to Dr Fearnside in October 2020 regarding the applicant’s neck is about six months after the applicant ceased work and makes reference to the 1988 injury.[48] Reply at page 463.
[49] Reply at page 368.
The existence of the 1988 injury does not, as Mr McManamey has submitted, necessarily automatically disqualify the applicant if section 16 of the 1987 Act is applicable. But it is necessary nonetheless that the applicant’s work for the respondent be demonstrated on the balance of probabilities as causing or aggravating (etc) his neck pathology.
Dr Bodel saw the applicant on 1 July 2010 at the request of the applicant’s then solicitors. The history given appears to have concentrated upon the applicant’s right middle finger and injury to the applicant’s lower back and right iliac crest and there did not appear to be any complaints by the applicant concerning his neck.[50] At that time there was good range of neck movement but by this time the applicant had by statement of 24 June 2010 evidently complained of not only back and right hip pain but also neck and groin pain. Dr Bodel concludes that in his opinion:
“This gentleman has developed a gradual onset of right hip pain as a consequence of the nature and conditions of work in general…
This may have been pre-disposed to by the injury to the back…
This gentleman has an ongoing incapacity as a consequence of the injury in July 1988 and his subsequent episodes of injury…
He developed significant pathology at that time and has also had an aggravation of underlying pathology.”
[50] Reply at page 122.
The point to be made about the 24 June 2010 statement (complaint of neck pain) is that it is in the historical context of the incident of 1 July 1988 (or at least that is a fair reading of the history given to Dr Bodel[51]). Dr Bodel’s examination occurred on 1 July 2010, close to the applicant’s last day of working of 9 April 2010. There is no history nor diagnosis of neck aggravation or pathology whilst the applicant was employed by the respondent.
[51] Reply at page 123.
Dr Davis in a report to the applicant’s former solicitors of 19 July 2001[52] took a history of the three frank incidents and pain in the applicant’s lower back, right buttock, knee and right groin which was aggravated by bending, lifting, twisting or working in confined or awkward spaces.[53] Dr Davis confirmed that the applicant’s injury was consistent with his history and work was a substantial contributing factor and noted the work that the applicant was performing was “not entirely appropriate to his physical disability”.[54]
[52] Reply at page 126.
[53] Reply at page 128.
[54] Reply at page 129.
Dr Hsu, treating spinal surgeon, in a report of 22 November 2011 was of the view[55] that the only option for treatment was C5/C7 decompression and fusion as well as lumbar spine cortisone injections.[56]
[55] Reply at page 164.
[56] Reply at page 165.
The applicant provides a consistent history of lower back and right knee problems having been contemporaneously reported on three specific occasions as well as generally after
9 April 2010. In terms of the neck, although there is a gap in the reporting of neck pain after
9 April 2010, the fact remains that it was (contrary to Professor Ehrlich’s opinion) reported as early as 2007. In the circumstances I am not content finding that the applicant during his employment with the respondent up to 10 April 2010 was subjected to heavy and arduous duties which have caused or aggravated (etc) degenerative changes in the applicant’s cervical spine. In view of the much earlier complaints of lumbar spine and right lower limb,
I am satisfied that the applicant’s work for the respondent imposed an aggravation (etc) of these body parts within the meaning of section 4 (b) (ii) of the 1987 Act.
Relevance of section 16 and the date of injury
Mr McManamey argued that the applicant’s claim for both neck and back arises under section 16 of the 1987 Act. Relevantly, section 16 provides as follows:
“16 (1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of disease:
(a) the injury shall, for the purposes of this Act, be deemed to have happened:
(i)at the time of the workers death or incapacity, or
(ii)if death of incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
It does not necessarily follow that an applicant with an existing disease who carries out work and suffers symptoms, for example pain, has suffered an aggravation of his or her disease.[57]
[57] Albury City Council v Gunton [2011] NSWWCCPD 68 at [161] – [164].
In Buhler[58] (relied on by the applicany) the Commission was dealing with three separate periods of employment with three respondents. The applicant’s evidence was that she suffered neck pain with the first respondent and made a claim for compensation and that her neck pain was “easily aggravated by her various work since that time”. The Arbitrator found that the applicant had not suffered injury during the first period of employment. Similarly, there being insufficient medical evidence that the applicant’s injury occurred as a result of a nature and conditions of employment until September 2001 when she commenced with the third respondent. The applicant had discontinued the claim against the third respondent.
[58] Buhler v Email and Anor [2008] NSWWCCPD 135.
The proper application of section 16 has been submitted by Mr Parker to include first a finding of injury, second application of section 16 to determine who pays for it.
Mr McManamey, unlike Mr Parker, argued that it is not a question as to how long an applicant has worked in a particular employment and this is important because in the time up to 10 April 2010 the applicant had only worked for the respondent for a period of about two to four months. But in my view the enquiry nonetheless requires causation either directly or by way of aggravation (etc) in the last employment.In addition to his earlier statements, the applicant gave statements of 14 October 2021[59] and 8 June 2022.[60] In the first statement the applicant said:
“12. Although I continued to work up to 2010, I had intermittent back and neck pain, which increased in frequency, duration and intensity over time. Form work is heavy work.”[61]
[59] Application at page 2.
[60] Application at page 15.
[61] Application at page 3.
In terms of the work with the respondent the applicant refers to “a lot of manual handling”,[62] the work being “particularly heavy” because of the absence of lifting equipment and because two of the form workers were the boss’s sons: “Myself and the other bloke were the donkeys”.[63]
[62] Application at page 12 at [131].
[63] Application at page 12 at [132].
Those references would appear to be the sum total of evidence of contemporaneous neck injury during the applicant’s employment with the respondent. At paragraph 133 of the applicant’s 2021 statement[64] the applicant mentions a very painful right knee and back but in describing the work performed with the current respondent he makes no mention of any pain, let alone pathology in his cervical spine. Coupled with the absence of earlier complaints of neck pain and no mention of neck being affected in his claim form of 30 September 2010, I am of the view that there is insufficient evidence to establish that the applicant’s employment with the respondent was either the main nor a substantial contributing factor to any injury to his cervical spine. As such, it is accordingly unnecessary to give further consideration to section 16 of the 1987 Act. Section 16 is not triggered in respect to any cervical spine injury. It is trigger in respect of injury to the applicant’s lumbar spine.
[64] Application at page 12.
Section 322A of the 1998 Act and section 65 of the 1987 Act
Section 66 (1) A applies to claims for lump sum compensation which are made on or after
19 June 2012.[65] On 24 July 2014 the applicant withdrew and discontinued his claim against the fourth respondent.[66] The remitter to the Registrar for referral to an AMS applied only in respect of permanent impairment to the back and loss of use of sexual organs resulting from injuries of 1 July 1988, 19 August 1992 and 16 March 1994 “for which the first, second and third respondents have liability…”.[67] The applicant having discontinued against the current respondent in those proceedings, the Certificate of Determination which subsequently issued[68] although still (probably incorrectly) referring to the current respondent as a fourth respondent, does not deal with any injury to the applicant’s back aggravated (etc) by his employment with the current respondent. This is no doubt because of the nature of the referral as well as the determination by AMS Dr Burns issued on 15 October 2014 which attributes responsibility to three specific incidents, none of which apply to the current respondent.[65] Schedule 6 Part 19 H Division 3 Clause 15 of the 1987 Act.
[66] Reply at page 266.
[67] Reply at page 258 at [2].
[68] Reply at page 268.
On this view, the applicant has not made any “claim” in the sense of section 66 (1A) for permanent impairment as a result of any back injury with the current respondent. Additionally, there has hitherto been no assessment of “injury” arising out of or in the course of the applicant’s employment with the current respondent.
It follows in my view, having regard to the findings I have made concerning injury to the applicant’s lower back that the applicant is not precluded from having his whole person impairment assessed which results from injury to the lower back with deemed date of injury 10 April 2010.
FINDINGS AND ORDERS
The applicant has already been assessed in respect of whole person impairment for injury to his right lower extremity.[69] The applicant has established injury to his lower back for which a referral to a Medical Assessor for assessment of whole person impairment is appropriate. The applicant has not established in my view aggravation (etc) of the applicant’s cervical spine by reason of his employment with the respondent. The applicant’s employment with the respondent was neither the main nor a substantial contributing factor to any such aggravation (etc).
[69] Dr Burns’ Medical Assessment Certificate 13% WPI dated 24 February 2015 at Reply at 282.
The appropriate Directions are as follows:
(a) award in favour of the respondent in respect of allegation of cervical spine injury;
(b) award in favour of the applicant in respect of lumbar spine and right lower limb injuries;
(c) the matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s lumbar spine deemed to have occurred on 10 April 2010, and
(d) the President’s delegate is requested to place before the Medical Assessor a copy of the Application and attachments lodged on 16 June 2022 and a copy of the Reply and attachments lodged on 8 July 2022.
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